Communicated on 23 September 2020
Published on 12 October 2020
THIRD SECTION
Application no. 20942/19
Montserrat DEL PINO ORTIZ
against Spain
lodged on 8 April 2019
SUBJECT MATTER OF THE CASE
The application concerns the refusal to grant a survivor’s pension to the applicant due to a declaration of unconstitutionality of Article 174 § 3 of the Law of Social Security. The civil partnerships were not required to fulfil any formal registration requirement to be entitled to a survivor’s pension in Catalonia. On 11 March 2014 the Constitutional Court ruled that civil partnerships had to be registered at least two years before one of the partners’ passing away in order to be entitled to a survivor’s pension, for the pension regime to be harmonised all over Spain. The applicant’s partner died on 22 May 2014, without any prior registration of their civil partnership. As a result, the applicant saw herself in the impossibility to comply with the formal requirement of registration of their civil partnership at least two years before her partner passed away, the registration system for civil partnership having been implemented in Catalonia only in 2017.
The Labour Court of Barcelona refused to grant the survivor’s pension to the applicant. This judgment was upheld on appeal, on cassation and by the Constitutional Court.
The applicant complains under Article 1 of Protocol No. 12 that the refusal of a survivor’s pension on the grounds of the impossibility to comply with the formal requirements imposed by the Constitutional Court ruling in her case constitutes an indirect discrimination based on sex, insofar as women have been especially harmed by the described facts, and a direct discrimination in respect of survivors’ whose partners passed away after having had time to register their civil partnerships.
QUESTION TO THE PARTIES
Has there been a breach of the applicant’s right under Article 1 of Protocol No. 12? In particular, has there been due consideration of the gender mainstreaming and of the moment when other survivors’ partners passed away, taking into account that the applicant was required to comply with new formal requirements to access to a survivor’s pension which could not be foreseen according to regional Catalan law at the relevant time?
Full & Egal Universal Law Academy